Under Seal: Secrets at the Supreme Court
Peterson, Emily, News Media and the Law
An increasing number of cases filed under seal at the Supreme Court troubles media access advocates
In 2009, the West Virginia Department of Health and Human Resources filed a child abuse and neglect petition against Carolyn Mallo and Alexander Doran. It alleged that their 14-year-old son lived in deplorable household conditions, and had been sexually abused by an uncle living in the home. His cousins, ages 6 and 7, were also living in the home.
Three days earlier, the 14-year-old had murdered an 82 -year-old woman who lived across the street.
The case received intense media scrutiny as the sordid details of the boy's life piled up. Media reports said that, when police came to the house to question the boy about the murder, they found a large knife lying on the kitchen floor, and two swords in the back bedroom. They found shards of glass on the floor and large holes in other parts of the floor that were big enough for children to fall into.
As the case to remove the children made its way through the court system, the family's names frequently appeared in press coverage. Despite the widespread public knowledge of the case, once the mother filed a petition to have the U.S. Supreme Court hear the case, the names of the 14-year-old's parents were redacted from court filings.
In recent years, the number of cases involving court documents that include information filed under seal in the U.S. Supreme Court has increased dramatically. Through database searches, the Reporters Committee for Freedom of the Press found that, in 1994, at least four cases involved documents under seal. In 2005, there were nine such cases. In 2009, at least 19 cases involved documents under seal. So far in 201 1, at least 16 cases involve documents under seal.
There are legitimate reasons to file documents, or portions of documents, under seal, as some of the cases suggest: Some documents are filed under seal to protect people in the federal witness protection program, and others redact the names of juveniles convicted of crimes or the identities of government informants. But the increase in the number of cases involving sealed information is indicative of an increasing willingness to have secret information in court files, something the Supreme Court's own precedents have discouraged.
"It's a very troubling trend," said David Schulz, an attorney who has represented The New York Times in efforts to unseal court documents. "We don't have a system of secret justice in this country, and it seems like more and more things are happening behind closed doors."
While some of the increase can be attributed to a steady stream of cases involving Guantánamo Bay detainees and documents the government alleges could harm national security if released, many are run-of-the-mill cases involving things that someone, somewhere, wants to keep under wraps.
In some cases, the original orders sealing the documents are missing, and nobody knows why the case is still proceeding in secret. In others, the entire rulings of lower courts are under seal. In one case, the existence of a case was not publicly known until a petition for certiorari appeared at the Supreme Court.
One attorney who has filed documents under seal at the Supreme Court speculated that the Internet is responsible for the increase in secret documents at the Court.
"Before, [the courts used] paper filings," said Michael Hasse, a New London, Conn., attorney who had a client in Puerto Rico cooperating with the government. The client's name was removed from the court filings so he would not face retribution in prison. Before, someone would have to go to the court house and physically sort through the court records to find information such as who is providing information to the government from jail. But "right now, anybody with a home computer . . . can read [the court documents]," Hasse said.
A right of access to court …
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Publication information: Article title: Under Seal: Secrets at the Supreme Court. Contributors: Peterson, Emily - Author. Magazine title: News Media and the Law. Volume: 35. Issue: 3 Publication date: Summer 2011. Page number: 41+. © Reporters Committee for Freedom of the Press Fall 2008. Provided by ProQuest LLC. All Rights Reserved.
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